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1
MAHKAMAH MAJISTRET KUANTAN
DALAM NEGERI PAHANG DARUL MAKMUR
PERBICARAAN JENAYAH NO: 83RS – 206 – 08 / 2016
PENDAKWA RAYA 5
V.
SABARIAH BINTI ADAM
[IDENTITY CARD NO.: 680608 – 08 – 6124]
JUDGMENT 10
NORDIANA BINTI ABD AZIZ
INTRODUCTION
[ 1 ] The accused person (Sabariah Binti Adam (Sabariah) who is 49
years old was charged with two counts of knowingly concealing
stolen property, an offence under section 414 of the Penal Code. 15
She claimed trial to both charge.
[ 2 ] Prosecution is conducted by Deputy Public Prosecutor (DPP)
Mohamad Shahrizzat bin Amadan whilst the accused is
represented by Encik Muhamad Saifuldin Bin Dato’ Ab Rahman.
20
THE CHARGE
[ 3 ] The charge preferred against Sabariah were as follows:
2
The First Charge
Bahawa kamu pada 09.03.2015 jam lebih kurang 12.06
tengahari bertempat di alamat Public Bank Jalan
Beserah, Dalam Daerah Kuantan, dalam Negeri
Pahang Darul Makmur dengan sengaja telah 5
membantu menyembunyikan sesuatu harta iaitu wang
bernilai lebih kurang RM3,500 yang mana kamu pada
masa membantu menyembunyikan harta tersebut yang
berkenaan itu, mempunyai sebab mempercayai
bahawa harta itu harta percurian, maka kamu dengan 10
ini telah melakukan suatu kesalahan yang boleh
dihukum di bawah seksyen 414 Kanun Keseksaan.
The Second Charge
Bahawa kamu pada 10.03.2015 jam lebih kurang 11.32 15
tengahari hingga 11.34 tenghari bertempat di alamat
Public Bank Jalan Beserah, Dalam Daerah Kuantan,
dalam Negeri Pahang Darul Makmur dengan sengaja
telah membantu menyembunyikan sesuatu harta iaitu
wang bernilai lebih kurang RM6,000 yang mana kamu 20
pada masa membantu menyembunyikan harta tersebut
yang berkenaan itu, mempunyai sebab mempercayai
bahawa harta itu harta percurian, maka kamu dengan
ini telah melakukan suatu kesalahan yang boleh
dihukum di bawah seksyen 414 Kanun Keseksaan. 25
[ 4 ] On 22 December 2017, based on the provision under section 158
of the Criminal Procedure Code, the Court has amended the
charge as follows:
3
The First Charge (Amended Charge)
Bahawa kamu pada 09 Mac 2015 jam lebih kurang 12.06
tengahari bertempat di Public Bank Jalan Beserah, dalam daerah
Kuantan, dalam Negeri Pahang Darul Makmur dengan sengaja
telah membantu dalam menyembunyikan sesuatu harta iaitu 5
wang bernilai RM3,500 milik Normillah Binti Abdullah (KP:
670125-06-5426) yang mana kamu pada masa membantu
menyembunyikan harta tersebut, mempunyai sebab
mempercayai bahawa harta itu harta percurian, maka kamu
dengan ini telah melakukan suatu kesalahan yang boleh dihukum 10
di bawah seksyen 414 Kanun Keseksaan.
The Second Charge (Amended Charge)
Bahawa kamu pada 10 Mac 2015 jam lebih kurang 11.32
tengahari hingga 11.34 tenghari bertempat di alamat Public Bank 15
Jalan Beserah, dalam daerah Kuantan, dalam Negeri Pahang
Darul Makmur dengan sengaja telah membantu dalam
menyembunyikan sesuatu harta iaitu wang bernilai RM6,000 milik
Normillah Binti Abdullah (KP: 670125-06-5426) yang mana kamu
pada masa membantu menyembunyikan harta tersebut, 20
mempunyai sebab mempercayai bahawa harta itu harta
percurian, maka kamu dengan ini telah melakukan suatu
kesalahan yang boleh dihukum di bawah seksyen 414 Kanun
Keseksaan.
[ 5 ] The offence is punishable under section 414 of the Penal Code 25
which carries a punishment which may extend to seven years of
imprisonment or with fine or with both.
4
[ 6 ] After the amended charges were read to the accused, she still
claims trial to both charges.
PROSECUTION CASE
[ 7 ] Trial in this action commenced on 24th May 2017 in which the 5
prosecution in proving its case has called 3 witnesses:
(a) Det. Koperal (RF/127859) Sahrom Bin Mahat (PW1);
(b) Normillah Binti Abdullah (PW2);
(c) Sjn. (RF/186621) Mohd Hafri bin Mohd Yusof (PW3).
[ 8 ] Proceeding from the evidence of the witnesses, I shall now set out 10
the facts relating to the charge.
[ 9 ] On 21 July 2016, PW1 has executed an arrest on Sabariah. He
lodged a report at P1.
[ 10 ] PW2 is the complainant. She befriended a man named Nasir
whom she met online via Facebook. She knew him as a pilot from 15
Brunei. After getting to know each other for a year, a freight carrier
agent by the name of Marisa called PW2 informing her to collect a
package containing goods sent by Nasir. As she has this matter
confirmed by Nasir, she agreed to collect the said package.
[ 11 ] Through series of phone call from Marisa, PW2 was apprised of a 20
wad of greenbacks given by Nasir in the said package. Before she
can collect the package, PW2 was instructed to bank in a sum of
money into Public Bank account number: 6-8315929-09 for a
motley of reasons – among which as payment for excess parcel
fees and for customs clearance as the package has been found to 25
5
have contained undeclared dollar bill. Marisa demanded that a
sum of money be banked in into the said account by threatening
PW2 that she could be charged with criminal offence if she refused
to comply. The petrified PW2 acted according to what was
instructed and via 3 cash deposit transaction, she banked in 5
RM13,500 into Public Bank account number: 6-8315929-09 as
evidenced from P3 (A – C).
[ 12 ] On 11 March 2015, PW2 received another call from Marisa
informing her that she has to bank in RM25,000 into the same
account for customs clearance as the package has been found to 10
have contained undeclared money amounting to USD150,000.
Despite Marisa’s attempt to continuously shake PW2 down by the
threat of criminal prosecution, PW2 gave no credence to Marisa’s
request. Instead, she lodged a police report at P2.
[ 13 ] PW3 is the investigating officer assigned to investigate the report 15
lodged by PW2. After making thorough inquiry and investigation
over the matter, PW3 confirmed that PW2 has, via series of
transaction, banked in RM13,500 into Public Bank account
number: 6-8315929-09. By Borang Pembukaan Dan Salinan
Dokumen Pengenalan Bagi Akaun Nombor 6-8315929-09 (P6) 20
together with Perakuan Di Bawah Seksyen 90A (2) Akta
Keterangan gained from Public Bank Berhad, PW3 concluded that
Public Bank account number 6-8315929-09 is registered under the
name of Sabariah binti Adam (KP: 680608–08–6124) i.e. the
accused. His investigation into the report ended with the arrest of 25
the accused.
6
REDACTED VERSION OF PROSECUTION’S SUBMISSION
[ 14 ] According to prosecution, in order to prove the element of stolen
property which came under the definition referred by section 414
of the Penal Code, prosecution only need to prove that PW2 was
duped into depositing the money into Sabariah’s account and that 5
proof of actual theft is not necessary (PP v. Zainiddin Bin Jaafar
[2010] MLJU 1523).
[ 15 ] As far as knowledge is concerned, prosecution submitted on
circumstantial fact that the accused, as the account holder of
Public Bank account number: 6-8315929-09 has full access to the 10
account including its pin number. Thus when the accused took no
action to series of banking transaction in her account, the inference
is that she has knowledge of the devious transaction of concealing
PW2’s money and has voluntarily assisted in concealing stolen
property (Ahmad Bin Ishak v. PP [1974] 2 MLJ 21; PP v. Soong 15
Chak Sung [1955] 1 MLJ 144).
REDACTED VERSION OF DEFENCE’S SUBMISSION
[ 16 ] Counsel told the Court that PW2’s testimony was sketchy with the
intention of pulling the wool over the Court’s eyes. It is also 20
speculated that since PW2 befriended Nasir, she has knowledge
about the package sent by Nasir ergo, she deposited the money
on her own accord.
[ 17 ] Though is not disputed that Sabariah is the account holder for
Public Bank account number 6-8315929-09, it is submitted that the 25
accused has no intention in concealing the money deposited by
PW2. Counsel prayed to the Court to adjudge the accused
7
blamelessness for the crime charged as she is said to have been
the victim of Marissa’s hoax and has no knowledge that her
account has been fraudulently misused. In support, counsel
tendered several police report lodged by the accused at exhibit D4
and D11. 5
[ 18 ] During cross examination, PW3 admitted not inquiring further
about reports lodged by the accused and he also did not retrieved
CCTV footage of the relevant time during which the money was
withdrawn. PW3 rather dilettantish investigation over the matter,
according to the counsel, has led prosecution case to Achilles' 10
heel.
[ 19 ] In conclusion, counsel submitted that the above facts have created
fatal gap which destroys prosecution case.
FINDINGS OF THE COURT AT THE CLOSE OF PROSECUTION CASE 15
[ 20 ] It is a well settled principle that prosecution case must stand on its
own weight. At the end of prosecution case, prosecution has the
burden of presenting prima facie evidence of each element of the
crime charged (Low Kow Chai & Anor. v. PP [2003] 1 CLJ 734).
[ 21 ] For an offence under section 414 of the Penal Code, prosecution 20
need to establish the following elements:
(i) The property in question is stolen property;
(ii) The accused assisted in in concealing or disposing of or
making away with such property;
(iii) The accused did as in (ii) voluntarily. 25
8
(iv) The accused knew or had reason to believe that the property
was stolen property.
(Ratanlal & Dhirajlal Law of Crimes)
[ 22 ] In deciding whether the given elements have been proved, I will
consider and decide each of the element in seriatim. 5
[ 23 ] With regard to the definition of stolen property, my decision came
in parallel with prosecution’s submission. In this case, PW2 was
duped into depositing a sum of money into Public Bank account
no: 6-8315929-09 believing it to be payment for the release of a
package sent by Nasir. She never got the package despite 10
depositing a sum of money as instructed. In reference to the case
of Public Prosecutor v. Zainiddin Bin Jaafar [2010] MLJU 1523 and
section 410 of the Penal Code, I hold that money transferred by
way of cheating (as in this case, by PW2 into Public Bank account
no: 6-8315929-09) came within the definition of stolen property. 15
[ 24 ] On 09 and 10 March 2015, PW2 has deposited a sum of money
into Public Bank account no: 6-8315929-09. Without reservation,
the receipts at exhibit P3 and a bank statement at exhibit P6 stand
as proof of the said transaction.
[ 25 ] Apart than that, exhibit P6 also proved that the accused is the 20
account holder for Public Bank account no: 6-8315929-09. Thus it
is to be taken as read that the accused as the account holder for
Public Bank account no: 6-8315929-09 has possession of money
deposited by PW2 akin to the definition of possession as being
illustrated by Sharma J in Public Prosecutor v. Hong Ah Huat 25
[1970] 1 LNS 113. The same bank statement (P6) also proved that
all money deposited (by PW2) has been withdrawn. In that matter,
9
withdrawal of stolen property from Public Bank account no: 6-
8315929-09 inhere the element of concealing such property.
[ 26 ] Unauthorized transaction using her account and having no
knowledge of the fraudulent transaction have been forwarded by
the accused as her defence all throughout the prosecution case. 5
In support she tendered a report at D11 dated 18 June 2015.
Hence, the question, whether the said defence can be valid reason
to hold the crime as lacking in mental element on which criminality
would rest?
[ 27 ] As for the element of mens rea, I would like to quote the decision 10
made by the Court in in Public Prosecutor v. Dato Haji Mohamed
Muslim Bin Haji Othman [1983] 1 MLJ 245 where Hashim Yeop A
Sani J has held that mens rea can be proved in diverse way.
[ 28 ] As in this case, the Court is drawn to the inference that an account
holder must be held responsible for all transaction initiated or 15
authorized using her account number including transaction by
another person whom the account holder has given permission to.
This is based on the decision in Yap Khay Cheong Sdn. Bhd. v.
Susan George T.M. George [2017] 1 LNS 2041 which the Court of
Appeal held as follows: 20
…an account holder, has sole legal control and custody of
her own bank account. It is accepted that no person can
have any access to another person's account unless
consented to. In this case the Defendant had allowed
Tharvinder free access to her account and she should be 25
held responsible for the outcome of her action. Since she
had allowed Tharvinder to meddle with her account, in our
view she cannot absolve her responsibility by just feigning
ignorance about what went on in her account. We all know
10
that under the normal order of the day, her bank would have
contacted her about an unusually large transaction or an out
of the ordinary transaction such as this. She would have
been alerted and would have been aware of the transaction
with the Plaintiff. 5
[ 29 ] An apercu of the above facts, the accused as the account holder,
has control and custody over her account. When a person has
control and custody over a subject matter, he is also deemed to
have possession and knowledge (Henry Chan Kok Loon v. PP
[2017] 1 LNS 1174). As an account holder, the accused has the 10
capacity to deal with the money deposited into her account. Hence,
when the money was withdrawn from her account, she is said to
have voluntarily assisted in concealing the property knowing or
having reason to believe that it is stolen property.
[ 30 ] In every aspect of evidence presented by the prosecution, in my 15
considered opinion, prosecution has successfully proved all of the
element under section 414 of the Penal Code. Therefore the
accused is called to enter defence to the two charges framed
against her. After the three alternatives consequent upon such
finding were explained to the accused, she elected to give sworn 20
evidence.
DEFENCE CASE
[ 31 ] From actus reus point of view, counsel contended that there is no
evidence to proof that the accused assisted in concealing the 25
money deposited by PW2. Instead she claimed to have been the
victim of the same trumpery scheme and not the perpetrator. She
claimed to have never instructed PW2 to deposit the money into
11
the said account. The report at exhibit D4, D11 and D12 were
tendered in support of her innocence. She told the Court that the
case was investigated by Inspektor Megat.
[ 32 ] From mens rea viewpoint, it is asserted that the accused has no
knowledge that her account has been used for criminal purposes. 5
To prove the accused not responsible for the crime, counsel
submitted that the first action taken when she was informed about
the incident was to lodge a report at exhibit D11. Her defence
regarding the incident was forwarded as early as prosecution
stage. It is submitted that there was no element of afterthought or 10
bare denial with regard to her defence.
[ 33 ] With conviction counsel told the Court that the accused, who was
in desperate attempt to get her money back was conned into
opening a bank account in 2015. In fear of facing criminal charges,
she mailed the ATM card and its pin number to Husin. Thus she is 15
said to have no control and custody over her account as what was
espoused by the law by the definition of possession.
[ 34 ] According to counsel, the defence forwarded is sounder based on
hard evidence such as exhibit P8 and IDD13. Despite not calling
Inspektor Raabuan to verify Borang Pemeriksaan (Senarai Borang 20
Bongkar) Bertarikh 08 Jun 2015 i.e. IDD13, counsel made
reference to the case of PP v. Jufarif Ahmad Sulong [2017] 1 LNS
294 and prayed the said document be accepted as exhibit without
calling the maker in order to get at truth and to come to a proper
conclusion in trial. 25
12
DUTY OF THE COURT AT THE CLOSE OF DEFENCE CASE
[ 35 ] At the conclusion of the trial, the Court shall consider all evidence
adduced before it and shall decide whether prosecution has
proved its case beyond reasonable doubt. If the Court finds that
the prosecution has proved its case beyond reasonable doubt, the 5
Court shall find the accused guilty and he may be convicted on it.
If the Court finds that the prosecution has not proved its case
beyond reasonable doubt, the Court shall record an order of
acquittal. There are multitudinous of cases on the duty of the Court
at the end of defence case such as the encapsulated in the time 10
honored decision of Mat v. Public Prosecutor 1963 29 MLJ 263
and Public Prosecutor v. Mohd Radzi Bin Abu Bakar [2005] 6 MLJ
393.
FINDINGS OF THE COURT AT THE CLOSE OF DEFENCE CASE 15
[ 36 ] In brief, the accused relied solely on the argument that the charge
lacked criminal element. She denied to have ever instructed PW2
into depositing the money into her account nor was she involved
in concealing the money deposited. As far as mens rea is
concerned, the accused argued that she has no custody and 20
control over the account as she has given the ATM card and its pin
number to a man named Husin.
[ 37 ] Before dwelling into the defence raised by the accused, I am going
to bring to notice on two points. Number one, I would like to
embrace all of the findings that I made at the end of prosecution 25
case.
13
[ 38 ] Secondly, with regard to Borang Pemeriksaan (Senarai Borang
Bongkar) Bertarikh 08 Jun 2015 i.e. IDD13. According to DW1,
IDD13 was prepared by Inspector Mohd. Raabuan B. Mohd Ain,
an investigating officer from Bahagian Siasatan Jenayah Komersil
IPD Cheras. When asked further by the prosecution, DW1 was not 5
able to give detail about IDD13. Counsel attempted to submit the
document as exhibit through the accused despite Inspector Mohd.
Raabuan was not subpoenaed to give evidence with regard to this
document. This has, of course, led to protestation from the
prosecution. 10
[ 39 ] Suriyadi Halim Omar FCJ in the case of PP v. Azilah Hadri & Anor
[2015] 1 CLJ 579 cited the judgment made in Allied Bank
(Malaysia) Bhd v. Yau Jiok Hua [1998] 2 CLJ 33 which decides as
follows:
It is settled law that where a document is sought to be 15
proved in order to establish the truth of the facts
contained in it, the maker has to be called (see R v.
Gillespie [1967] 51 Cr App Rep 172; R v. Plumer [1814]
R & R 264: Hill v. Baxter [1958] 1 QB 277; R v. Moghal
[1977] Crim LR 373). Non-compliance with this rule will 20
result in the contents of the documents being hearsay.
[ 40 ] After reviewing the submissions of the parties regarding Borang
Pemeriksaan (Senarai Borang Bongkar) Bertarikh 08 Jun 2015 i.e.
IDD13 and with reference to the case of PP v. Azilah Hadri & Anor
(Ibid), the Court decided that Borang Pemeriksaan (Senarai 25
Borang Bongkar) Bertarikh 08 Jun 2015 i.e. IDD13 shall remain as
an ID because Inspector Mohd. Raabuan B. Mohd Ain as the
document maker was not called to the Court to confirm the
14
contents of this document. Besides that DW1 was not able to state
in detail about IDD13.
[ 41 ] Taken that every facts in the above have been considered, I now
come to my judgment at the end of defence case. After maximum
evaluation of all the evidence adduced before me, I find the 5
credibility of the accused is openly thrown into issue based on
several point. Firstly, the accused in my considered opinion was
erratic and vacillating when answering questions posed by the
Deputy Public Prosecutor that she has to be calmed down by her
counsel. There are also times when she contradicts herself with 10
numerous hard evidence presented before the Court. For instance,
during chief examination, she told the Court that she was arrested
on 08 June 2016 whereas the report at D11 proved that she was
arrested on 08 June 2015.
[ 42 ] Secondly, it was asserted by the accused that Public Bank account 15
no: 6-8315929-09 was controlled by Husin as she has mailed him
her ATM card with its pin number. She claimed, she too, has fallen
victim to the dupery cabal led by Raymond, Marisa and Husin.
Essentially it is a well celebrated principle in the law of evidence
that he who asserts has the burden of proving it (See section 103 20
of the Evidence Act 1950; Harvinder Singh a/l Joginder Singh v.
Public Prosecutor And Another Appeal [2018] MLJU 51).
[ 43 ] Despite her assertion, the accused offered no evidence in support
of her contention. There was no banking receipt, no postage
receipt nor did she ever inscribed details of the artifice banking 25
transaction in D4 and D11 to support her testimony.
[ 44 ] To rub salt into the wound, Inspektor Megat, Inspektor Razman or
Inspektor Raabuan whom she claimed had investigated her case
15
and whom she claimed had gain access to Public Bank bankbook,
hand phone and documents pertaining to the dupery scheme were
not put before the Court. As these witnesses and documents were
only known by the defence, the non-attendance of the witness
affected the weight of evidence of the accused. Edgar Joseph Jr. 5
J in Public Prosecutor v. Tan Gong Wai & Anor [1985] 1 MLJ 355
has held the following:
…the failure to call any particular witness is a matter
which the Court may take into account in assessing the
weight of evidence (without drawing any adverse 10
inference) especially so when the potential witnesses
were persons in respect of whom the prosecution had
probably no means of knowing that they might have any
relevant evidence to give until the accused himself
came to give evidence. 15
No ifs, and buts, all of the above findings made her defence
becoming specious and enervated – hence implausible.
[ 45 ] Last but not least, the mens rea defence. The accused claimed
that she has no custody and control over the account as she has
given the ATM card and its pin number to a man named Husin. 20
Hence she denied having mens rea to bring about the criminal act
as charged.
[ 46 ] Raja Azlan Shah FJ delivering judgment of the Court in Tham Kai
Yau & Ors v. Public Prosecutor [1977] 1 MLJ 174 has held that
intention or mens rea is not something which is capable of being 25
established by direct evidence; it is a matter of inference. It could
be gathered from all the facts and circumstances prevailing in the
case.
16
[ 47 ] The accused primary defence with regard to mens rea element
was that she has no possession of the ATM card as it was posted
to Husin. When asked further, she could not provide any postage
receipt to confirm her defence. In this case, the truth of her defence
is dubious. The following are excerpts from her statement during 5
cross examination:
75. Soalan : Kamu hantar kad dan buku akaun melalui
poslaju?
Jawapan : Ya.
76. Soalan : Kalau poslaju, mesti ada resit.
Jawapan : Ada.
82. Soalan : Kamu tidak pernah usaha dapatkan rekod
apa jadi kepada barang yang dihantar
kepada Husin Hasan?
Jawapan : Ya.
[ 48 ] Her next defence as to mens rea element was that the ATM card
and its pin number was under the custody and control of Husin.
Thus, she claimed having completely no knowledge of any 10
transaction in Public Bank account no: 6-8315929-09.
Nevertheless, when answering questions put forward by the
Deputy Public Prosecutor, she contradicts her defence as she
admitted having knowledge Husin is accessing her account and
she also admitted using the account actively in 2015: 15
70. Soalan : Kad bank kalau diserahkan kepada orang
dan orang itu ada nombor pin pula, kita tahu
dia akan ada akses kepada akaun kita?
17
Jawapan : Setuju.
85. Soalan : Kamu tahu dan sedar Husin Hasan ada
akses kepada akaun kamu?
Jawapan : Ya.
86. Soalan : Rujuk P6.
Adakah kamu menggunakan akaun Public
Bank ini dengan aktif?
Jawapan : Ya.
[ 49 ] Furthermore in her report at D12, she admitted receiving a call
from Public Bank Berhad informing her of a withdrawal amounting
to RM5,000 from her account. This goes to show that the bank
kept the accused abreast of the transaction in the account and in 5
point blank proves that the accused is aware of what is going on
in Public Bank account no: 6-8315929-09. Conspicuously by D12,
despite the amount of money withdrawn from her account (as
claimed), the accused did not lodge any report against Husin
whom she claimed to have access to her ATM card and pin 10
number – making her defence becoming full of holes and to boot,
fictitious.
[ 50 ] Even though she claimed to have given Husin her ATM card and
its pin number, I would like to recapitulate my findings at the end
of prosecution case. It is adjudged that an account holder must be 15
held responsible for all transaction initiated or authorized using her
account number including transaction by another person whom the
account holder has given permission to (See Yap Khay Cheong
Sdn. Bhd. v. Susan George T.M. George (supra).
18
[ 51 ] All in all, there is not a soupcon of truth in the defence suggested
by the accused. Instead, her defence, in my considered opinion,
were mere fabrication concocted in attempt to avoid culpability of
the offence charged against her.
[ 52 ] That being said, I am satisfied to rule this judgment: After having 5
considered the defence in totality of the evidence presented, I find
that the defence has failed to cast a doubt on prosecution’s case
and in the circumstances, I find that prosecution has proved its
case beyond reasonable doubt. For the first and second charge, I
found the accused guilty and accordingly convict the accused of 10
both charges.
THE SENTENCE
[ 53 ] In this case the accused is convicted with two counts of knowingly
concealing stolen property, an offence which is punishable under 15
section 414 of the Penal Code that carries a punishment which
may extend to seven years of imprisonment or with fine or with
both.
[ 54 ] To reach an appropriate sentence, the Court has to consider the
nature and the seriousness of the offences that the accused has 20
been found guilty of, the personal circumstances of the accused
as well as the interests of society. It also had to take into
consideration the main purposes of punishment; namely
retribution, deterrence, prevention and rehabilitation.
[ 55 ] The accused set forth for a sentence of fine in her mitigation as 25
she has no previous conviction and was not the mastermind in this
dupery scheme. Apart than that counsel prayed that no custodial
19
sentence be imposed against the accused as she is a housewife
with 2 children to be taken care of.
[ 56 ] Prosecution on the other hand prayed that the accused be
sentenced to imprisonment as he pointed out public interests is
best served by sending the accused to prison. Reference is made 5
to the case of PP v. Loo Choon Fatt [1976] 2 MLJ 256. As the
accused is convicted of two counts of offence with distinct time and
amount of loss, it is prayed that custodial sentence is to be
imposed consecutively (Saizaitumuhiddin Ab Rashid v. PP & Other
Appeal [2014] 1 LNS 385). 10
[ 57 ] It is also highlighted that a crime with similar modus operandi is
booming incessantly in Kuantan as more people is reportedly have
fallen victims to the same dupery scheme. By the rampancy of the
offence, prosecution submits that custodial sentence is copacetic
as it will serve as a lesson to the accused and to serve as warning 15
to others.
[ 58 ] Submitting that the crime committed is serious in nature,
prosecution implored for custodial sentence that bespeak the
government’s effort in combating such dupery scheme.
[ 59 ] With regards to sentencing, I would like to quote the decision by 20
Hashim Yeop A. Sani J in Public Prosecutor v. Loo Choon Fatt
[1976] 1 LNS 102 where his Lordship is quoted as saying:
Presidents and magistrates are often inclined quite
naturally to be over sympathetic to the accused. This is a
normal psychological reaction to the situation in which the 25
lonely accused is seen facing an array of witnesses with
authority. The mitigation submitted by a convicted person
will also normally bring up problems of family hardship
20
and the other usual problems of living. In such a situation
the courts might perhaps find it difficult to decide as to
what sentence should be imposed so that the convicted
person may not be further burdened with additional
hardship. This in my view is a wrong approach. The 5
correct approach is to strike a balance, as far as possible,
between the interests of the public and the interests of the
accused.
[ 60 ] As prosecution has rightly pointed out, the crime involving a
scheme to conceal or dispose away stolen property is snowballing 10
in Kuantan. This can be seen from the number of cases (with
similar nature) registered in Mahkamah Kuantan.
[ 61 ] In my considered opinion, the crime of such nature is considerably
serious. It is not easily solved as it took years for the case to be
cracked by dint of untiring efforts of the police. Despite concerted 15
effort by PDRM in combating the crime, the fraudsters had always
an ace up their sleeve, evidently by the upsetting figure of such
crime being reported.
[ 62 ] Thus, the sentence imposed must act as a reminder to prevent
public from committing the same offence alongside of protecting 20
public interest. Mohtarudin Baki JCA in PP v. Muhammad Saifullah
Awang [2016] 3 CLJ 784 stated the following:
A deterrent sentence must be passed to strengthen public
confidence that an offense of this nature will be severely
punished by the Court. A long imprisonment term by the 25
court will create fear in the minds of future offenders
besides sending a message to the public about the
seriousness of this offense.
21
[ 63 ] I also do consider that the money concealed by the accused is
nowhere to be located. By this she has fraudulently gained unjust
enrichment to complainant’s detriment (Mohd Irwan Shah Zainaul
v. PP [2017] 1 LNS 1438), and for that reason, severe sentence is
apposite. 5
[ 64 ] Basing on the dictum as discussed in the above and the accused
having been convicted of the two charges, I hereby sentence the
accused as follows:
First Charge
12 months imprisonment with effect from 22 December 2017. 10
Second Charge
12 months imprisonment with effect from 22 December 2017.
[ 65 ] The sentence is to run concurrently for I find no justification in 15
ordering the sentence to run consecutively.
NORDIANA BINTI ABD AZIZ
Mahkamah Majistret Kuantan
01 May 2018
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